Case No.: UNRWA/DT/HQA/2012/042 NRWA … is an application by Camilo Riano ... the evidence is inconclusive. Case No.: ... Case No.: UNRWA/DT/HQA/2012/042

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Case No.: UNRWA/DT/HQA/2012/042

Judgment No.: UNRWA/DT/2013/035

Date: 1 October 2013

UNRWA DISPUTE TRIBUNAL

Original: English

Before: Judge Goolam Meeran

Registry: Amman

Registrar: Laurie McNabb

RIANO

v.

COMMISSIONER GENERAL OF THE

UNITED NATIONS RELIEF AND WORKS

AGENCY FOR PALESTINE REFUGEES

JUDGMENT

Counsel for Applicant: Self-represented

Counsel for Respondent: Miouly Pongnon (DLA)



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Introduction

1. This is an application by Camilo Riano (the “Applicant”), a former staff

member at the United Nations Relief and Works Agency for Palestine Refugees in

the Near East, also known as UNRWA (the “Respondent”), appealing a decision

to terminate his fixed-term appointment in the interest of the Agency.

2. The Application was filed on 16 August 2012 and transmitted to the

Respondent on 7 October 2012.

3. On 7 November 2012 the Respondent filed a Motion for Extension of

Time to File a Reply.

4. On 8 November 2012 the Applicant filed a Motion to deny the

Respondent’s Request for Extension of Time to File a Reply.

5. The Respondent’s Reply was filed on 15 November 2012 and transmitted

to the Applicant on 18 November 2012.

6. On 21 June 2013, following a Case Management Discussion (“CMD”), the

Tribunal waived the time limit and granted the Respondent leave to take part in

the proceedings after taking into account the Applicant’s views and explaining to

him why the Tribunal decided to waive the time limit.

Facts

7. By Letter of Appointment dated 18 July 2011 the Applicant was offered a

one-year Fixed Term Appointment as Project Manager, Enterprise Resources

Planning (“ERP”), at the P-5, Step 5 level at UNRWA Headquarters, Amman.

The appointment had taken effect on 10 July 2011.

8. It was common ground that a meeting was held on 21 July 2011, eleven

days after the start date of the Applicant’s contract, to discuss the Applicant’s role

as Project Manager. Recollections of this meeting are very different. The

Applicant states that he was informed by Ms. Laura Londén, the Acting Director,

Enterprise Resource Planning (“AD/ERP”), his direct supervisor, that she did not



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want him to perform the role of Project Manager, but rather, he would fulfill the

Project Management Office functions while she would continue to manage the

ERP Project.

9. The Respondent disputes that Ms. Londén ever made such a

representation. According to the Respondent, the Applicant expressed his

displeasure with the title of the post, which he claimed was not commensurate

with the title he would have enjoyed in the private sector. In response Ms. Londén

pointed out the duties and limitations of the role. The Applicant then stated that

her interpretation of his duties was erroneous and that he “would control all assets

and human resources of the project and would decide on allocation”. Whichever

version of the meeting is correct, this was not an auspicious start to the

relationship between the Project Manager and the Acting Project Director.

10. It is clear to the Tribunal from witness testimony and documents that

there was disagreement, uncertainty and tension about the Applicant’s role and

job description from a very early stage in the employment relationship.

Nevertheless, the Applicant signed both the Letter of Appointment and the

International Post Description for the post of “Project Manager – Enterprise

Resource Planning” with signatures dated 21 July 2011. It is unclear whether

these documents were signed before or after the meeting referred to above.1 The

Post Description included the following summary of the position:

The incumbent will manage and lead all aspects of the programme

management, change management and communications associated

with UNRWA’s new Enterprise Resources Planning (ERP) system,

which is to replace the existing management information systems

in the areas of finance, human resources, payroll, supply-chain

management, logistics, procurement and other administrative

systems. Facilitating stakeholders’ engagement, leadership

alignment, organizational development, and knowledge

management are key elements of this role.

11. By e-mail to the Applicant dated 2 August 2011, Ms. Londén offered to

discuss the Applicant’s role in the ERP team with him if he did not have total

clarity in this regard following their meeting. Ms. Londén also requested that the

1 The Respondent states that the meeting took place after the Applicant signed the document but

the evidence is inconclusive.



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Applicant send her a high-level work plan for the ERP Project so that an

individual work plan and deliverables could be agreed.

12. By e-mail dated 3 August 2011, the Applicant responded to Ms. Londén,

expressing a number of concerns about his job description and relationship with

her. Specifically, the Applicant stated:

…at the beginning of the meeting [of 21 July 2011] […] I

expressed that there was a need to review the organizational

structure of the ERP team. However, rather than enter into any

constructive dialogue, you immediately reacted by stating that I

was ‘not the ERP Project Manager’, and rather, you would manage

the project with me filling the role of project management support.

The Applicant concluded the e-mail by stating:

I feel that there is a mismatch between the JD and your

understanding of my role, as well as the project structure presented

in the organizational chart. In addition, I feel that the environment

that is created by this mismatch is not optimal for the organization

or the project and requires attention.

The Applicant requested a meeting with the Director of Human Resources

(“DHR) or project sponsor (the Deputy Commissioner General, Ms. Margot Ellis)

in order to:

1. Review and clarify the title and job description of my role

based on your latest statements. Without clear defined roles,

accountability and responsibility, it would be difficult to

succeed in this position.

2. Agree on a mutually respectful way of working together so that

we can achieve the project objectives […] it is very difficult to

work in an environment of distrust and second guessing.

13. It is not clear whether this meeting took place. However, the Tribunal is

surprised at the contentious tone of the Applicant’s e-mails to Ms. Londén, even if

he considered that he had legitimate grounds for concern.

14. By e-mail dated 17 August 2011, addressed to Ms. Ellis and Ms. Londén

and copied to the Applicant and five other staff members, Mr. Filippo Grandi, the

Commissioner-General, identified a number of tasks that needed to be completed,



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including the creation of a precise cost estimate, before he could “give a final

greenlight to the [ERP] project”. The e-mail concluded as follows:

In your [the DCG] and Laura’s absence, I am asking Camilo (and

the ERP team) and Magnus to take the lead in responding to the

issues above.

The Respondent submits that the Applicant did not comply with the direction of

the Commissioner-General and that instead Ms. Londén had to produce the

requested work upon her return from leave. At the hearing, Counsel for the

Respondent and Ms. Londén emphasized the fact that the Applicant was remiss in

not responding to the Commissioner-General’s e-mail providing a timeframe for

completion of the tasks adding that she had to do so on her return from a short

absence. The Applicant testified that it was not necessary to send a response to the

Commissioner-General since none was required. It was his view that what the

Commissioner-General was seeking was delivery of the task and that this is what

he was working on. Whilst Ms. Londén agreed that the task was completed she

seemed very reluctant to give the Applicant credit for this achievement even

suggesting that it was not his personal achievement but that he put together the

contributions of others in the team and built upon work that had already been

done. She expressed the view that the Applicant could not take credit for the

completion of that task. However, when asked by the Judge whether or not it was

the function of a Project Manager to coordinate the team effort and to ensure that

a final product was produced she agreed.

15. On 13 October 2011 a disagreement arose via exchange of e-mails

between the Applicant and Ms. Londén over a presentation that the Applicant was

to give to the Advisory Commission Subcommittee. Ms. Londén requested that

the Applicant give a ‘dry-run’ rehearsal of the presentation. The Applicant

indicated that he felt uncomfortable doing so. In his view Ms. Londén was

seeking to control the presentation. He noted that he had never before been asked

to do presentation rehearsals in front of supervisors, and suggested that Ms.

Londén deliver the presentation. The disagreement appears to have severely tested

Ms. Londén’s patience. She felt that she had grounds to question the continued

viability of the employment relationship.



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16. By e-mail to Ms. Ellis, the Deputy Commissioner-General, who was the

Applicant’s Second Reporting Officer and Project Sponsor, and Ms. Cornelia

Moussa, the DHR, dated 13 October, forwarding her correspondence with the

Applicant, Ms Londén stated:

I am really truly sorry to say that as this week has demonstrated,

from my perspective, that this simply is not going to work. It is

possible that it might work better with someone else (than me), but

the frustration and feedback from the team would indicate not.

I am simply perplexed at the reactions and single-focus on form

over substance and deliverables. Hours have been spent this week

alone on details of job descriptions. This is taking far too much of

the time at a time when we need a nimble, flexible team where

everyone does what is needed.

* * *

In conclusion, as you know, I am more than happy to step aside

from the ERP Project. In particular, I really do not have the

appetite or time to spend time and energy on what I deem to be

petulant, indulgent posturing at the cost of deliverables.

17. The Tribunal notes that on receipt of this e-mail both Ms. Moussa, the

DHR, and Ms. Ellis, the Project Sponsor and DCG, were on notice that: (a) the

relationship between the Applicant and Ms. Londén was severely strained; and (b)

that there was potential discord within “the team”. Ms. Moussa and Ms. Ellis,

both senior managers within the Agency, having been advised by Ms. Londén that

there was a serious issue which could affect the success of the Project, would have

been expected by Ms. Londén and the Applicant to have done something

constructive, in an even handed manner, to defuse the situation. They do not

appear to have taken the steps necessary to address these concerns with the

Applicant and Ms. Londén. According to the Respondent’s Reply, by this stage

the Applicant had also failed to satisfactorily complete a number of tasks assigned

to him by Ms. Londén. One of the key questions to be determined in this case is

whether the Applicant was explicitly notified that his performance, attitude,

communication, and/or relationship management were not up to the required

standards and whether he was given clear guidance and an opportunity to

improve.



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18. On 20 October 2011, the Agency issued Vacancy Announcement No. 11-

HQ-AM-47 for the post of Director, Enterprise Resources Planning, D-1. The

Applicant applied for the vacancy.

19. By e-mail dated 16 November 2011, Ms. Moussa informed the Applicant

that his candidature for the position of ERP Director had not been successful

because the position required a “different profile”.

20. By e-mail dated 17 November 2011, the Applicant replied to Ms. Moussa

stating:

…I really hope that we can quickly find a candidate with the

profile that you are looking for.

In the mean time, I would like to start the process of changing my

post title and redefining the roles and responsibilities to match the

new recruiting decision.

21. On 20 November 2011, Ms. Moussa replied to the Applicant stating that

she would like the suggested review of the Applicant’s position to take place once

the position of ERP Director had been filled, so that the person hired could have

an opportunity to provide input. This seems to the Tribunal to be a reasonable

response by Ms. Moussa to this particular issue.

22. By e-mail dated 27 November 2011, an Assistant Personnel Officer sent

the Applicant a Performance Evaluation Report (“PER”) form for the period 10

July 2011 to 30 April 2012, requesting that he complete the relevant sections

before forwarding it to his supervisor for completion.

23. On 14 December 2011, Ms. Londén forwarded the Assistant Personnel

Officer’s e-mail of 27 November 2011 to the Applicant stating:

While I don’t understand why the reporting period is only until

April (as opposed to July?) lest we forget, we will need to schedule

the mid-term performance review session early in January when

you are back from leave. DHR will take part in this discussion.

The message was sent with a “Follow Up Flag” and a “Due By” date of 3 January

2012. Ms. Londén did not explain why the DHR had to be present at the mid-term

performance review.



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24. The Applicant testified that some time in January 2012, his fiancée, who at

that time also worked at the Agency, was notified that she had been selected for a

post in New York. As a matter of courtesy, he notified Ms. Londén that he was

considering moving to New York to join his fiancée. He enquired whether the

Agency was interested in renewing his contract so that he could consider his

options. The Judge asked whether he received an answer from Ms. Londén and

the Applicant testified that he was informed that her recommendation would be

not to renew the contract when his term ended because the functions of the post

were changing and the post would most likely be down-graded to P-4.

25. In early February another disagreement broke out in the ERP Project when

a staff member sent a project document to an external partner. The Applicant

retracted the document, stating that it had been sent without his authorization.

Subsequent internal e-mails showed that there was disagreement and confusion

about the arrangements that had been set in place for communicating with the

particular partner, both in relation to the specific document, and more generally.

26. Other staff members working on the ERP Project were unhappy with the

Applicant’s handling of the situation as evidenced by e-mails on the record that

were sent to both the Applicant and Ms. Londén.

27. By e-mail dated 4 February 2012, Ms. Londén stated that she was

“shocked and deeply perturbed” to see the exchange of e-mails resulting in the

retraction of the project document. She had specifically directed the team that

differences of opinion were to be resolved internally rather than in front of

external parties. She concluded that the Applicant’s e-mail to the external partner

retracting the document had been a “wholly inappropriate” way of dealing with

the situation. This e-mail was sent to the Applicant and members of the ERP team

without Ms. Londén first seeking an explanation from the Applicant.

28. By e-mail dated 5 February 2012, the Applicant provided an explanation

for his retraction, stating that he had clearly asked that an e-mail not be sent to the

partner organization until specific information had been received.



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29. At a meeting on 13 February 2012, between the Applicant and Ms. Londén

the Applicant indicated his intention to follow his fiancée to New York. Ms.

Londén then informed the Applicant that she did not intend to recommend the

renewal of his fixed-term appointment upon its expiration. The Applicant testified

that Ms. Londén informed him that he had a number of options, some of which

were more damaging than others. One option was that no PER would be

completed and the Applicant could be “transitioned” to a different assignment.

Alternative assignments were then discussed that would remove the Applicant

from the Project Management Office role for the remainder of his contract.

According to the Applicant’s testimony he suggested at the meeting that he could

play a technical role within the ERP team in the field of data migration.

30. By e-mail to Ms. Moussa dated 13 February 2012, Ms. Londén

summarised the meeting with the Applicant as follows:

To summarize, in a meeting today, Camilo indicated – and I

accepted – that he would in tomorrow’s meeting advise us both

formally of his intention not to extend his contract beyond 10 July

due to Louise’s return to UNICEF.

Between now and end of contract I will assign him tasks outside

the ERP PMO structure which do not entail close interaction or

interdependencies with the team […]

Anyhow, tomorrow’s meeting should hopefully be relatively

straightforward, with Camilo declaring non extension of contract

and us gracefully accepting this.

31. The Applicant was concerned at the prospect raised by Ms. Londén that

there may not be a performance appraisal to cover his work over the year with the

Agency. He considered that his prospects of other employment within the United

Nations system may possibly be adversely affected if he did not have the

performance appraisal. Accordingly by e-mail to Ms. Londén dated 14 February

2012 the Applicant sent a draft PER for “review and signature.”

32. The Applicant filled out both the self-appraisal sections of the PER and the

sections that the instructions indicate are for the First Reporting Officer to

complete such as Section VII – Year end performance review by FRO. In Section

VII of the PER, the FRO is to evaluate the relevant staff member against eleven



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different performance indicators. In this section the Applicant rated himself as

exceeding performance expectations in relation to six indicators and as meeting

performance expectations in relation to five indicators. He also filled out Section

VIII – Overall Performance Rating – which according to the instructions is to be

completed by the Second Reporting Officer. The Applicant indicated an overall

performance rating of “exceeds performance expectations”.

33. Ms. Londén replied on the same day suggesting discussion of the draft

PER with Ms. Moussa and noting that the Applicant was only half way through

his performance period, “despite the HR admin driven adjustment in PER period”.

34. On the 14 February 2012, the Applicant attended a meeting with Ms.

Londén and Ms. Moussa. According to Ms. Londén’s testimony the Applicant

was reminded that her recommendation was going to be that his contract should

not be renewed. She explained to him that he had a number of options. If he did

not seek renewal of his contract, no PER would need to be completed. If he did

seek an extension of his contract, a PER would need to be completed, and the

assessment of his performance would not be good. There was a discussion of the

consequences of having a bad PER on record in terms of his future career within

the UN. The issue of alternative assignments was discussed. The Applicant stated

that he wanted to have his contract renewed. This represented a change in the

Applicant’s position since he had previously informed Ms. Londén on 13

February 2012 that he intended to follow his fiancée to New York.

35. By e-mail to Ms. Londén and Ms. Moussa dated 15 February 2012, the

Applicant stated that he would like to “reaffirm” his interest in having his contract

renewed at the end of its term. The Applicant also stated:

I would like to follow the PER process and, at the appropriate time,

have my performance evaluated in an accurate and objective

manner. In any case, I intend to fulfill the current contract to the

best of my abilities until the 10th

of July, 2012.

Since the Acting Director of the ERP has expressed her desire to

relieve me from my current duties, I request a written notification

and an explanation of any decisions that might affect the full

execution of my current contract. I would like to have proper



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clarification as I assess the options available to me to pursue this

matter further.

36. By memorandum dated 17 February 2012, the Applicant sent to the UN

Ethics Office and UNRWA Office of Internal Oversight Services a report of

alleged serious misconduct by Ms. Londén. The memorandum was sub-divided

into two individual allegations as follows:

• Allegation #1: Abuse of Power and Harassment,

Mismanagement, and Waste of Resources.

• Allegation #2: Procurement Irregularities and General Fraud

The Applicant concluded the memorandum by stating:

…it is clear that A/DERP and DHR, have an interest in removing

me from the project as soon as possible. They are pressuring me

into resigning from the UN system by abusing their authority, and

harassing and trying to intimidate me, to prevent the ERP project

mismanagement, waste of resources, procurement irregularities,

and general fraudulent practices, from being exposed.

37. By e-mail dated 20 February 2012 and copied to Ms. Moussa, Ms. Londén

responded to the Applicant’s e-mail of 15 February, stating, inter alia:

Following our bilateral discussion on 13th

and as agreed in the

meeting with DHR on 14 February, we have identified a full-time

assignment for you in ISD, with effect from 21 February. This

assignment is in line with your expressed subject matter interest

and work experience.

The e-mail went on to set out the specific detail of the proposed new assignment

in the Information Systems Division (“ISD”).

38. On or around 20 February 2012, the Applicant met Ms. Londén and the

Chief of ISD to discuss the proposed assignment. The Applicant recorded the

meeting without the knowledge of the other participants in the meeting.

39. By e-mail dated 21 February 2012, the Applicant responded to Ms.

Londén’s e-mail, stating that he did not accept the proposed transfer:

…I would like to clarify that I have never agreed to this particular

assignment or any other assignment in DAS-ISD…



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…I would like to reaffirm that I do not agree with this full-time

assignment, do not accept to be transferred overnight to a different

department reporting to the Chief, ISD, and will not assume roles

and responsibilities that are different to what is written in my

current contract. I will not accept changes to my roles and

responsibilities without having followed the standard HR

procedures, discussed valid business reasons for such changes, and

modified my contract accordingly…

From what you have explained and your actions, the motivation

seems to be to create an excuse to remove me overnight from the

ERP Project without following the established HR procedures, and

without providing an objective and valid justification for your

decisions. You continue to make personally-motivated decisions

which impair the success of the project, and seem to repeat the

pattern of how the first two ERP Directors were treated.

I believe that your insistence in pointing out, during our previous

three meetings, the serious impact that my UN career will suffer if

I do not accept your offers, is inappropriate…

40. By e-mail dated 22 February 2012, Ms. Londén responded to the

Applicant’s e-mail reminding him that his “work must be performed within the

framework of general Agency decisions, policies and directives and instructions

from the Director, ERP” and requesting that he keep her appraised of his

activities, clear with her any written communications to external stakeholders, and

that any communications from the Applicant to the ERP team outside the Project

Management Office were to go through her.

41. By e-mail dated 26 February 2012, the Applicant responded to Ms.

Londén, reiterating that he would like to continue in the Project Manager

functions as described in his contract and not be moved to a different assignment

in a different department. He also stated:

In your response email of 22 February 2012, without any

justification, I feel that you continue using your authority for

placing restrictions on my ability to do my job, by establishing

excessive rules of supervision and monitoring of my work, and

creating the perception that I have done something to deserve the

humiliating treatment of unwarranted exclusion and isolation.

The Applicant then set out a number of concerns arising from the Ms. Londén’s

recent instructions, and the effect compliance with those instructions would have



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on his ability to perform his functions. The Applicant further requested an

explanation of the motivation behind the restrictions, noting:

Other than one situation where I had to do my job and

communicate to WFP that [ERP staff member] had sent a

communication after expressly being told on several occasions not

to do so, I do not see what you could be using to justify your

decisions. In that particular case, I requested in writing and

personally, most recently in front of the Director of HR, a meeting

to discuss the details. There has been no action on your part, other

than sending emails that have embarrassed me in front of the whole

ERP team, have undermined my job position, and created a very

hostile working environment.

42. By e-mail dated 26 February 2012, Ms. Londén responded stating that the

first part of her e-mail of 22 February simply quoted the Applicant’s job

description. In relation to the communication restrictions she stated:

…in addition to ensuring a coordinated approach, in light of related

grievances from ERP team members and to avoid additional team

discord at this critical juncture […] I have felt compelled to place

boundaries on written communications outside PMO […] you are

totally free to communicate as you see fit with your direct reports

in the PMO team.

In relation to the Applicant’s desire to remain in his current assignment and the

performance appraisal, Ms. Londén stated:

Over the past few weeks, we have discussed, in person, with DHR

and bilaterally, or exchanged emails on, a multitude of issues

pertaining to your contract, a proposed alternative assignment and

performance; to name but a few. You have sent me a draft PER on

14 February, which, also as advised, I will duly complete. This will

in all likelihood be next week given the programme of this week.

However, should you wish to discuss further this, or any other

issues or statements in your email, I am available to meet at any

time today, or in the course of the week. In light of past experience,

I will invite a 3rd

party to be present in any such meeting.

43. The Applicant failed to take up Ms Londen’s invitation of a meeting to

discuss his concerns but sent her a written response by e-mail dated 1 March

2012. He reiterated a number of concerns including the historical lack of clarity

on his roles and responsibilities and Ms. Londén’s alleged lack of action in that

regard; Ms. Londén’s continued reference to team discord and alleged



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mismanagement of such discord if it did exist; unjustified restrictions on

communications; and mixed signals about the PER:

On 13 February, in advance of the planned discussion with DHR, I

sent you the required PER; you took no action. You now say you

will “duly complete” my PER, when in our meeting of 20 February

you stated that it was too soon to do a performance review, and that

it will be bad “no matter what”.

44. E-mails between Ms. Londén, Ms. Ellis and Ms. Moussa in early March

indicate that a decision was made at that point to recommend the termination of

the Applicant’s employment. It was considered urgent to resolve the issue as soon

as possible because of the perceived negative effect of the Applicant on the ERP

team and “leave” that Ms. Londén had scheduled between 7 and 17 March. By e-

mail dated 1 March to Ms. Ellis and Ms. Moussa, Ms. Londén stated:

…the intent is to finalise the PER urgently, share it with Camilo

Sun-Mon, discuss it with him in the presence of DHR (Mon), and

then take the matter to the ACHR next week with a

recommendation to terminate with 30 days notice.

Cornelia, on second thought, it may be best not to share the PER

with him ahead of our meeting with him; simply as I have no way

of gauging his reaction.

It is clear at this point that a decision had been taken to push the Applicant out as

quickly as possible. Though the final administrative decision was to be made by

the Commissioner-General, e-mails from Ms. Londén and Ms. Moussa to each

other and Ms. Ellis indicate that by 3 March they had determined what their

recommendation would be, regardless of what the Applicant said at the meeting to

discuss his PER. This e-mail also constitutes evidence that Ms. Londén was not

acting in good faith. The PER was to be withheld from the Applicant until the date

of the meeting. Though subsequent e-mails suggest that the PER was not finalized

until the morning of 6 March, there was clearly no urgency to complete the PER

in sufficient time for the Applicant to receive it prior to the planned meeting given

Ms. Londén’s indication that the PER should not be shared with him ahead of

time. Ms. Londén and Ms. Moussa also knew that 6 March would be the last

opportunity to meet with the Applicant before Ms. Londén went on leave.



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45. By e-mail dated 4 March 2012, Ms. Londén disagreed for the record with

the Applicant’s statements and assessment of the situation in his e-mail dated 1

March, noting in particular that in her e-mail of 26 February she had specifically

offered to meet with the Applicant to discuss any of the issues raised in his e-mail

including the performance appraisal.

46. By e-mail dated 6 March 2012 (8:01 AM), Ms. Londén informed the

Applicant that a meeting would be scheduled for that day to discuss his draft PER

and any other issues he wished to raise. It is questionable whether this is sufficient

notice.

47. By e-mail response the same day (9:00 AM), the Applicant stated:

…I would like to have a conversation with the Project Sponsor

first. Given your statement that you will give me a bad PER “no

matter what,” I will also be requesting to have my PER done by the

DCG, to receive a fair and objective performance assessment.

48. By e-mail to the Applicant at 9:41 AM, Ms. Moussa stated that the draft

PER that he had been invited to discuss reflected the assessment of both his First

and Second Reporting Officers. She also stated:

It is in your interest to discuss the draft PER before it is finalized. I

advise you to come to the meeting to which you have been invited

today with the First Reporting Officer, in the presence of HR, so

that any views, concerns any questions you might have can be fully

addressed. You have the option to be accompanied by another staff

member if you would like.

This meeting must take place today since you did not report for

work yesterday and because the First Reporting Officer will be

away on mission travel from tomorrow. The Second Reporting

Officer is not available for the meeting today as she is currently on

mission in the area of operations.

49. By e-mail to Ms. Moussa at 11:11 AM the Applicant responded stating:

If the draft PER reflects the assessment of the DCG, then there is a

strong business reason to wait until she is available to participate in

the meeting.

He also asked for clarification as set out in the bullet points below. The Tribunal

provides observations after each comment:



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• Why the urgency now to have this meeting, when in our

previous meetings you indicated that the PER review could be

done at any time and that it was preferable to do it closer to the

end of my contract?

It seems to the Tribunal that the urgency was predicated by the procedural

requirement that it was necessary to create a PER, and provide the Applicant with

an opportunity to discuss that PER, before the case could be referred to the ACHR

with a recommendation of termination. The timeline set out in Ms. Londén’s e-

mail called for the case to be referred to the ACHR the following week.

• Why are you now putting pressure on me to discuss the PER

draft, saying that it is in my “interest” to discuss the draft PER

before it is finalized.

Given that Ms. Londén, Ms. Moussa and Ms. Ellis had already decided to

recommend the termination of the Applicant’s employment, it is questionable to

what extent any comments he might have made would have affected the outcome

of the process.

• Why do we have to meet today if the A/DERP will be back in

10 days and the deadline established by HR to complete the

PER is 30 April 2012, as per email from the International

Personnel Section dated 27 November 2011?

This is a valid point as is the Applicant’s suggestion that if the PER reflected the

assessment of Ms. Ellis then it made sense to wait for her return so that she could

participate in the meeting. The urgency was particularly unreasonable given the

plan to withhold the PER from the Applicant until the meeting, providing him

with very little time to consider the comments and the response he wanted to

make. The dates of Ms. Londén’s leave were also known in advance meaning the

urgency and pressure on the Applicant could have been avoided.

• Why are you accusing me of not reporting to work yesterday,

when I was all day preparing for the conference call […] to

report on progress of the ERP project at UNRWA […]

It is not clear why Ms. Moussa stated that the Applicant did not report to work on

5 March. However, the record shows that the meeting could not have taken place

on 5 March because Ms. Ellis did not submit her comments to be inserted into the



Page 17 of 42

PER until after close of business that evening. Also, even if the Applicant was

working from home or another location on the 5th

, if the PER had been completed

in sufficient time, it could have been shared with him via e-mail to give him an

opportunity to consider it before coming to the meeting the following day.

50. By e-mail to the Applicant at 5:23 PM Ms. Londén responded to his e-mail

sent at 11:11 AM noting with regret that he had “declined to meet with DHR and

myself to discuss your draft PER, today, 6 March, at 14hrs, as set out in the email

exchanges below” (the email exchanges are set out above). Ms. Londén attached

the draft PER for his review and comments and noted that it reflected the

assessment of both the First and Reporting Officers. She asked the Applicant to

provide any comments to Ms. Moussa, Ms. Ellis and herself by close of business

9 March.

51. In the draft PER the Applicant’s performance was rated as not meeting

expectations in relation to nine performance indicators and meeting expectations

in relation to one indicator – gender. Another indicator – problem solving skills –

was rated as not applicable with a corresponding comment stating that Ms.

Londén had been “unable to assess [the indicator] substantively”. In her

comments as First Reporting Officer on the Applicant’s self-appraisal and

accomplishments, Ms. Londén stated:

With respect to the accomplishments set out in the self-appraisal,

the SM’s account implies a far greater substantive contribution

from himself than is the actual case.

While the SM has contributed to the listed written outputs, these

have, with one exception (ACIO presentation), largely and

substantively been derived from already existing documentation, or

parts thereof, that have been redrafted, updated and/or re-validated.

With the exception of a presentation to ACIO, presentations, status

reports and updates have been prepared by other team members, in

addition to their own portfolios.

52. On 7 March 2012, the Applicant had a meeting at his request with Mr.

Patrick Cronin, the Chief, Personnel Services Division (“CPSD”) to discuss the

PER process. The Applicant recorded the meeting without the knowledge of Mr.



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Cronin. The Applicant alleges that Mr. Cronin tried to bully and threaten him into

accepting a compromise resolution.

53. By Interoffice Memorandum dated 13 March and addressed to the DCG in

her capacity as Chair of the Advisory Committee on Human Resources

(“ACHR”),2 Ms. Moussa referred the matter of the Applicant’s contract to the

ACHR “for review and recommendation to the Commissioner-General”. The

memorandum stated:

According to the Director of Administrative Support who is

currently the Acting ERP Director, Mr. Riano has not

demonstrated the aptitude required for the post. His presence in the

ERP team has become a source of disruption and distraction among

team members…

Mr. Riano has been asked to engage in discussions about his

performance and future of his contract, which he declined.

Thereafter, he has been asked to provide written comments on the

attached draft PER, which he also declined.

54. A meeting of the ACHR was convened on 14 March 2012 .The issue of

the Applicant’s performance and contract was included on the agenda. According

to the minutes of the meeting, Ms. Ellis introduced the item and then invited Ms.

Moussa to provide further information. Ms. Moussa then provided a summary of

the situation and concluded by suggesting either separation in the interest of the

Agency with 30 days notice, or relieving the Applicant of his duties immediately

but continuing payment until the end of his contract on 10 July 2012. The minutes

record a few brief comments from other members of the ACHR in support of

termination with 30 days notice, which the ACHR recommended to the

Commissioner General.

55. On 18 March 2012, Ms. Ellis, as the ACHR Chair, signed off on the

recommendation and on 20 March 2012 Mr. Grandi, the Commissioner-General,

approved the decision.

2 It should be noted that in her capacity as the Applicant’s Second Reporting Officer, Ms. Ellis

countersigned the PER which rated the Applicant’s performance as “Performance falls short of

expectations.”



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56. On 22 March 2012, the Applicant met Ms. Moussa and Mr. Nathan Baca,

a Human Resources Officer. Ms. Moussa informed the Applicant that the ACHR

had recommended, and the Commissioner-General had decided, that his contract

should come to an end. The Applicant recorded the meeting without the

knowledge of Ms. Moussa or Mr. Baca. At the meeting, the Applicant was given a

letter dated that day in which Ms. Moussa informed him in writing that his fixed-

term appointment would be terminated in the interest of the Agency. The letter

stated:

You have been employed by the Agency on a one-year fixed-term

appointment […] This fixed-term appointment is also considered a

probationary period.

Since your appointment in July 2011, numerous issues have been

raised by yourself and your supervisor and the members of the

ERP team with respect to your role and performance as ERP

Project Manager. Many concerns about your ability to fulfill the

duties of your post in a satisfactory manner have been brought to

your attention. Several attempts have been made to correct this

situation and to achieve agreement and a relationship of trust

between you, your supervisor and the ERP team. These attempts

were unsuccessful. I note that an e-Performance Evaluation Report

(e-PER) has been initiated by your supervisor, and that you have

been invited to discuss your performance and to submit written

comments to the e-PER. You have declined to attend a meeting to

discuss your e-PER and you have not responded to the invitation to

provide written comments.

Recently this matter has escalated and was referred to the Human

Resources Department (HRD) for advice. Efforts by HRD have

also failed to result in an adequate resolution. The Advisory

Committee on Human Resources (ACHR) has completed a review

and recommended that you appointment be terminated in the

interests of the Agency…

Accordingly, I regret to inform you that your fixed-term

probationary appointment will be terminated in the interests of the

Agency effective 22 April 2012.

57. By Interoffice Memorandum dated 26 March 2012, the C/PSD informed

the Applicant of the clearance procedures and his entitlements upon separation

from the Agency. The memorandum stated, inter alia:



Page 20 of 42

Your service to the Agency of less than one year would normally

require a recovery of certain entitlements received on appointment

and the reduction of certain entitlements on separation. However,

under the circumstances of your separation, the Agency will not

seek these recoveries or alterations.

58. By Interoffice Memorandum dated 16 April 2012, Ms. Christine Kisenga,

the Officer-in-Charge of the Personnel Services Division, attached a PER for the

Applicant’s “review and signature” on Part X as an acknowledgement of the

completion of the report. She asked that he return the signed PER to her before the

last day of his appointment on 22 April 2012.

59. The Applicant responded to Ms. Kisenga by e-mail dated 18 April 2012,

stating:

The PER you have attached is not an official PER. It was put

together by Management in clear disregard for UNRWA’s own e-

PER process. Enclosed, please find a copy of the draft e-PER sent

to my supervisor for discussion, on 14 February 2012.

Specifically, sections VI and VII were completed by FRO without

having had a previous discussion with the staff member…

The case file contains no record of the Applicant having signed the PER sent to

him by Ms. Kisenga.

60. By e-mail to the Deputy Commissioner-General dated 18 April 2012, the

Applicant sought review of the decision to terminate his appointment. He

submitted that the decision was:

…not taken in the interest of the Agency, nor it was related to my

performance. Rather, it was driven by ill-motivation, made in bad

faith, in contravention of fair dealings, capricious, personalized and

affected by external factors, and in violation of the Agency’s own

Regulations, Rules and other Administrative issuances.

Furthermore, the Decision was preceded by work harassment and

abuse of power, and was motivated by retaliation.

In addition, the Applicant responded specifically, and in detail, to a number of the

statements by Ms. Moussa in her letter dated 22 March 2012.

61. By e-mail to the Commissioner-General dated 2 May 2012 the Applicant

sought a suspension of the implementation of the 22 March 2012 decision to



Page 21 of 42

terminate his appointment until a decision review had been completed and the

outcome notified to the Applicant.

62. By e-mail to the Applicant dated 5 June 2012, the Commissioner-General

rejected the Applicant’s request for suspension of action, noting that the request

was submitted on 2 May 2012, “at which time your separation from UNRWA had

already been fully effected.” The Commissioner-General also stated that the

matter had been thoroughly reviewed by management and that the decision was

based upon the Applicant’s “documented underperformance during the

probationary period”. Accordingly, he had not found a sufficient basis to suspend

the decision.

63. By letter to the Applicant dated 6 June 2012, Ms. Ellis responded to the

Applicant’s request for decision review, affirming the decision to terminate his

appointment and stating:

In conducting my review, I note that during your first

(probationary) year of service as the Project Manager for the ERP

Project, serious concerns were expressed regarding your

performance. These performance issues were documented by your

supervisor in your performance review, which I note you declined

to comment on. I note that attempts made by your supervisor and

the Department of Human Resources to improve your performance

were unsuccessful, and that the matter of your underperformance

was referred to the Advisory Committee on Human Resources

(ACHR). The ACHR subsequently recommended to the

Commissioner-General that your appointment be terminated. Such

recommendation was approved by the Commissioner-General.

The information I have reviewed provides me with no reason to

overrule the decision to terminate your appointment with

UNRWA. I also noted that all Agency Staff Regulations and Rules

have been fully complied with in reaching such a decision.

Furthermore, my review does not note any instances of abuse of

authority or harassment.

64. The Tribunal notes that that in this case the decision of Mr. Grandi, the

highest decision-making authority in the Agency as Commissioner-General, was

reviewed by his subordinate, Ms. Ellis, the DCG. Ms. Ellis was also involved in

the evaluation of the Applicant’s performance in her capacity as his Second

Reporting Officer, and in making the recommendation to the Commissioner-



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General to terminate the Applicant’s employment in her capacity as the Chair of

the ACHR. It is not clear who should review a decision made by the

Commissioner-General. However, Mr. Ellis was clearly not in a position to

provide an independent review of the decision given her involvement, both as the

Second Reporting Officer and as Chair of the ACHR, in formulating the

recommendation on which the Commissioner-General relied.

65. By memorandum dated 11 June 2012, the Applicant submitted a second

complaint to the United Nations Ethics Office alleging continued harassment,

abuse of power and retaliation by Ms. Londén, Ms. Moussa and Mr. Cronin

following his initial complaint, and continuing after his contract was terminated

on 22 March 2012.

66. The Application was filed on 16 August 2012 and transmitted to the

Respondent on 7 October 2012.

67. On 7 November 2012 the Respondent filed a Motion for Extension of

Time to File a Reply.

68. On 8 November 2012 the Applicant filed a Motion to deny the

Respondent’s Request for Extension of Time to File a Reply.

69. The Respondent’s Reply was filed on 15 November 2012 and transmitted

to the Applicant on 18 November 2012.

70. On 18 December 2012 the Applicant filed Observations on the

Respondent’s Reply, which were transmitted to the Respondent on 20 December

2012.

71. A telephone CMD was held on Friday 21 June 2013. The Respondent’s

request for an extension of time to file a reply and the Applicant’s objection to the

request were discussed. The Judge indicated his view that in the circumstances of

this case, it would be in the interests of justice – and would be appropriate for a

fair and expeditious disposal of the case – to allow the late filing of the Reply.

The Judge indicated that he had not listened to the recordings submitted by the

Applicant pending discussion of their admissibility at the CMD. Counsel for the



Page 23 of 42

Respondent repeated the Respondent’s objection to the admissibility of the

recordings as evidence. By consent it was agreed that the Judge would listen to

the recordings to determine if they were relevant to the proceedings and if so,

whether it was necessary to admit them into evidence to ensure a fair

determination of the case. The Judge indicated that a hearing would be necessary

in the case. The Applicant was asked whether he had access to videoconferencing

facilities and he responded that if the Judge was travelling to Amman for the

hearing he would probably travel too.

72. By Order No. 055 (2013) dated 24 June 2013 the Tribunal accepted the

Respondent’s Reply and ordered the parties to produce further information and

documents.

73. On 8 July 2013, the Applicant filed a Response to Order No. 055. In his

response the Applicant confirmed his attendance in person at the hearing and

sought contact information for a staff member at the UNRWA Travel Office who

could provide “the required tickets, hotel reservations and DSA to the Applicant”.

74. On 19 August 2013, the Respondent filed a Response to Order No. 055.

75. By Order No. 078 (2013) the Tribunal clarified that it did not require the

physical presence of the Applicant in Amman for the hearing and therefore Article

11(4) of the Tribunal’s Rules of Procedure, which requires UNRWA to bear the

costs associated with travel and accommodation of the party in such

circumstances, was not applicable.

76. By e-mail dated 6 August 2013, the Applicant confirmed his attendance at

the hearing in person.

77. A hearing took place between 25 and 27 August 2013 at which both the

Applicant and Ms. Londén gave evidence and were cross-examined.

Applicant’s contentions

78. The Applicant contends that:



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(i) The Agency did not have a sufficient basis to terminate his

appointment in the interest of the Agency.

(ii) The Applicant’s termination was a result of retaliation.

(iii) The Applicant suffered harassment during the termination process.

(iv) The composition of the ACHR panel presented a conflict of interest.

79. In response to Order No. 055 (2013) the Applicant re-stated the remedies

that he was seeking. The remedies sought were as follows:

(i) the rescission of the decision to terminate his appointment and

recognition that his contract should have been renewed for one year

from 10 July 2012, and for three more years from 10 July 2013.

(ii) Full salary and entitlements from 22 April to 10 July 2012 at P-5,

step 5, and continuing until final determination of the case at the

appropriate step.

(iii) Reinstatement at UNRWA or another United Nations Agency.

(iv) An award of USD 50,000 for moral damages for both himself and his

wife to compensate for the high degree of stress, anxiety and moral

damage inflicted on each of them.

(v) Referral of the case to the Secretary-General of the United Nations

for possible action to enforce accountability.

(vi) Reimbursement of travel costs and expenses incurred as a result of

return from Amman to his country of origin (Colombia) and

reimbursement to UNICEF for the cost of the trip from Colombia to

join his spouse in New York.

Respondent’s contentions

80. The Respondent contends that:

(i) The decision to terminate the Applicant’s fixed-term contract was a

proper exercise of the Respondent’s discretion.

(ii) The management of the Applicant’s performance and issuance of his

PER was done in conformity with applicable rules.

(iii) The Respondent enjoys broad discretion to assign staff to any

activities to meet Agency needs.

(iv) The decision to terminate the Applicant’s appointment was free of

retaliatory or other improper motives.



Page 25 of 42

(v) Upon termination of the Applicant’s appointment, the process of his

separation was in conformity with applicable Regulations and Rules.

(vi) The presence of the DHR on the ACHR does not give rise to a

conflict.

(vii) The Applicant lacks standing to pursue the claims of his wife.

81. The Respondent requests the Tribunal to dismiss the Application in its

entirety.

Considerations

Preliminary Issue 1: Receivability of the Application and Reply

Receivability of the Application

82. Staff Rule 111.2(1) provides:

A staff member wishing to formally contest an administrative

decision alleging non-compliance with his or her terms of

appointment or the contract of employment, including all pertinent

regulations and rules and all relevant administrative issuances

pursuant to Staff Regulation 11.1(A), as a first step, submit a

written request for decision review.

83. Article 8(1) of the Tribunal’s Statute provides:

An application shall be receivable if:

* * *

(c) An applicant has previously submitted the contested

administrative decision for decision review.

84. In accordance with the above provisions, elements of the Application that

the Applicant did not address in his request for decision review dated 18 April

2012 are not receivable. Specifically, the element of the claim relating to

harassment during the termination process is not receivable insofar as it relates to

matters such as the separation procedures that were followed after 22 March 2012,

the alleged harassment of the Applicant’s wife, and any separation entitlements

that allegedly remain outstanding. The Tribunal does not have jurisdiction to



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consider these matters as a separate head of claim. Accordingly, they will not be

considered in this judgment.

Admissibility of the Reply

85. Article 6(1) of the Tribunal’s Rules of Procedure provides:

The Respondent's reply shall be submitted within 30 calendar days

from the date of receipt of the application by the Respondent in one

signed original together with annexed documents, which may be

electronically transmitted. The Respondent who has not submitted

a reply within the requisite period shall not be entitled to take part

in the proceedings except with the leave of the Tribunal.

86. The Application was transmitted to the Respondent on 7 October 2012.

Therefore in accordance with Article 6(1) of the Rules of Procedure, the

Respondent had until 6 October 2012 to file a Reply. A Motion for Extension of

Time to File a Reply was filed on 7 October, one day after the deadline expired.

The Respondent stated:

In this case, upon receiving the Application on 7 October 2012, the

Respondent made diligent efforts to collect all relevant

documentation and information necessary for it to respond to the

allegations and claims in the Application. However, in view of the

complexity of the case, the volume of materials to be reviewed and

verified, and the departure of certain key staff from the Agency

(including the Director of Human Resources and the Chief,

Personnel Services Division), the Respondent needs additional

time to properly present a full record of the relevant facts before

this Tribunal. The Respondent is seeking some additional

documentation and is in the process of finalizing its reply, but will

need some additional time to do so.

87. The Respondent’s Reply was received on 15 November 2012, nine days

after the deadline expired.

88. The Tribunal discussed the receivability of the Reply with the parties at

the CMD on 21 June 2013. After considering the Respondent’s Motion for

Extension of Time to File a Reply and the Applicant’s Motion to deny the

Respondent’s Request for Extension of Time to File a Reply, the Tribunal

accepted the Respondent’s Reply by Order No. 055 (2013) dated 24 June 2013.

The reasons for that decision are now provided in full.



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89. The Tribunal has power under Article 30 of the Rules of Procedure to

shorten or extend a time limit fixed by the Rules or to waive any rule3 when the

interests of justice so require. Pursuant to Article 14 of the Rules, the Tribunal

may make any order or give any direction which appears to be appropriate for a

fair and expeditious disposal of the case and to do justice to the parties. The

Tribunal has taken into account the reason provided by Respondent for the delay,

the Applicant’s objections, and the relatively short duration of the actual delay in

filing the Reply. Each case has to be considered on its own merits and the

Tribunal takes note that time limits are to be complied with as a matter of fairness

and efficiency. Notwithstanding these strictures, the Tribunal considers that in the

particular circumstances of this case, it is in the interests of justice – and it would

be appropriate for a fair and expeditious disposal of the case – for the Tribunal to

extend the time limit under Article 6 and accept the late filing of the Respondent’s

Reply. It is the Tribunal’s assessment that, given the complexity of the factual and

legal issues involved in this case, submissions from both parties will better equip

the Tribunal to render a fair and comprehensive judgment. The Tribunal therefore

grants leave to the Respondent to file a late Reply and to participate in these

proceedings.

Preliminary Issue 2: Admissibility of recorded evidence

90. The Applicant submitted three audio files as annexes to his application,

which, according to the Application, are audio recordings of the following

meetings:

(i) Meeting between the Applicant, Ms. Londén and the Chief of

the ISD on 20 February 2012;

(ii) Meeting between the Applicant and Mr. Cronin on 7 March

2012; and

(iii) Meeting between the Applicant and Ms. Moussa on 22 March

2012.

91. In his Reply the Respondent objected to “the secret recording of

conversations without prior consent” and requested that the Tribunal exclude the

3 With the exception of the deadline for decision review.



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evidence. In his Observations to the Respondent’s Reply the Applicant submitted

that the recordings should be admitted as evidence for the following reasons:

(a) “[t]o obtain prior consent…to record meetings in which the

Applicant was being subjected to extortion, was impractical

and would not have protected the human rights of the

Applicant to working [sic] in an environment free of

harassment, abuse of authority and misconduct”;

(b) “…the Agency’s officers do not have a reasonable

expectation of privacy when they are conducting official

business in the work place and interacting with the employee

making the recordings”;

(c) there was no pre-existing rule prohibiting employees from

secretly recording others in the workplace;

(d) “as an American”, he acted in good faith based on his

understanding of the law applicable in the United States;

(e) the recordings only took place after a formal complaint of

misconduct and harassment had been filed. Recordings were

the “only resource available to the Applicant to obtain

undisputed evidence that the misconduct was happening”;

(f) the use of secret recordings in this case should therefore be

considered a “protected activity”.

92. The Respondent objected to the admissibility of the recordings at both the

CMD and the hearing, submitting that the creation of such secret recordings

undermines trust, professionalism, and integrity in the work place. Counsel for the

Respondent also submitted that if the recordings were to be admitted, the

Applicant should authenticate them and identify the persons involved, the date of

the recordings and the location at which the recordings were made.

93. Article 12 of the Tribunal’s Rules of Procedure provide:

Evidence

1. The Tribunal shall determine the admissibility of any evidence.

* * *

5. The Tribunal may exclude evidence which it considers

irrelevant, frivolous, or lacking probative value.



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94. There is no universally accepted practice or legal principle against the

admissibility of secret recordings of discussions so long as the information sought

to be admitted is relevant and probative of the issues to be determined.

Furthermore, the evidence must be necessary for a fair and just disposal of the

proceedings. As a matter of good employment relations, the Tribunal considers

that secret recordings in the workplace undermine the important relationship of

trust and confidence and are to be strongly discouraged. Any motion to admit such

material will be subject to utmost scrutiny. Nothing in this judgment should be

taken as giving comfort to those who engage in the practice of clandestine

recordings.

95. The Judge indicated at the beginning of the hearing that he had listened to

the recordings and had some reservation as to their relevance but that he would

rule on the matter of their admissibility at the end of the evidence which may cast

a different light on the issues. Having heard the evidence the Judge was still not

persuaded. However, the Applicant made several references to the recordings in

his final submissions strongly arguing that they would show conclusively that he

was subjected to bullying, harassment and threats.

96. The Tribunal reminds itself that the Applicant knew that the conversations

were being recorded but the other participants did not. The Applicant’s behavior

would have been conditioned accordingly. The Applicant overstates the relevance

and importance of the recordings. Having been urged to hear the tapes the Judge

has done so. Whilst the recordings corroborate the Applicant’s contention that he

was being subjected to pressure to accept a negotiated compromise, the Tribunal

does not consider, given the issues to be decided, that the admission of the

recordings is relevant, sufficiently probative and necessary for a fair and just

disposal of the proceedings.

Was there sufficient basis to terminate the Applicant’s employment for poor

performance?

97. Both parties acknowledged the relevance of International Staff Regulation

9.1, which provides:



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The Commissioner-General may at any time terminate the

appointment of a staff member if, in the Commissioner-General’s

opinion, such action would be in the interest of the Agency.

98. The parties made extensive submissions, both in writing and orally at the

hearing, and submitted a large volume of e-mails and other documents, including

a number of technical documents relating to the ERP Project, in order to establish

their respective positions in relation to the Applicant’s performance. The Tribunal

has only set out a few, non-technical examples that are illustrative of the

disagreements between the Applicant and Ms. Londén canvassed in evidence.

99. While Regulation 9.1 accords the Commissioner-General a broad

discretion to terminate the appointment of a staff member in the interests of the

Agency, that discretion in not unfettered. The Agency’s decision may be set aside

if it is shown that the decision was arbitrary, motivated by retaliation or other

improper motives or was tainted by procedural irregularities.

100. Where a staff member appeals against a decision based on his or her

alleged professional shortcomings, the Tribunal shall not assess the staff

member’s performance, Assad, 2010-UNAT-021. It is not for the Tribunal to

make judgments and assessments as to the competence of individuals. However

the Tribunal will examine the facts to see if the decision taken accorded with due

process and procedural propriety or was influenced by an improper motive. The

burden of proving improper motivation lies with the staff member contesting the

decision. Absent any improper motive or procedural irregularities the Tribunal

cannot interfere with a bona fide management decision.

Did the Agency properly manage the Applicant’s performance and the

completion of his PER?

101. International Personnel Directive No. I/104.2/Rev.2, effective 1 March

2011, sets out the Agency’s International Staff Selection Policy and provides in

relevant part:

13. A supervisor has a responsibility for staff members under

his/her supervision to:



Page 31 of 42

(a) Consider staff development needs as part of the

annual performance review and make available

suitable learning opportunities;

(b) To provide coaching and support to assist staff

members to develop their skills and competencies,

and to identify potential opportunities and assist

staff members to prepare for reassignment within

the Agency.

102. International Personnel Directive No. I/112.6/15 effective 1 April 1981 set

out the Performance Evaluation Report System in place at the time and provided,

in relevant part, as follows:

2. The new reporting system introduces several significant

changes […] Most significantly, it requires the report to be shown

to the staff member and allows him/her to be directly involved in

the reporting process rather than merely being the object of the

report […] Finally, the new reporting system is predicated upon,

and is intended to foster a continual and constructive dialogue on

work performance between staff members and their supervisors.

Supervisory personnel are therefore expected to hold job-related

discussions regularly and frequently with staff members under their

supervision.

* * *

5. Performance evaluation reports will normally be made at

the end of each year of service…In addition, reports will be made

on the following occasions unless an earlier report has been

prepared on the staff member within the last six months:

(a) upon expiry of fixed-term appointment or upon separation

from service for other reasons;

* * *

(d) when there is a recommendation or decision involving

disciplinary action, suspension from duty or termination.

10. …Primary responsibility for completion of the performance

evaluation report lies with the staff member’s immediate

supervisor as the first reporting officer and the next in-line

supervisor as the second reporting officer.

11. …the first reporting officer…shall discuss with the staff

member his/her main assignments and performance during the

reporting period…This discussion also provides an occasion for a

review of the work situation and for setting future work

expectations.



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12. …the evaluation procedure also requires the second

reporting officer…to discuss the staff member’s performance with

the first reporting officer and, if he or she deems it necessary, with

the staff member.

13. If a staff member so desires, he or she may make a written

statement in explanation or rebuttal of part or all of the report.

Such statement shall be submitted within one month of receipt of

the report and addressed to the Secretary of the Periodic Reports

Review Committee who immediately will send copies of the

statement to the first and second reporting officers for comments.

103. The Tribunal notes Ms. Londén’s evidence that she did not have the

technical expertise and that is why the Agency appointed a Project Manager at P-5

level of seniority – to be self-motivated to carry out the necessary functions

104. The Tribunal accepts that there were numerous disagreements between the

Applicant and Ms. Londén about his role and functions, that she provided the

Applicant with feedback on a number of tasks, including instructions for how to

improve documents that he had submitted, that she advised the Applicant and

another colleague that they needed to improve their communication with other

team members, and that she requested that the Applicant be more responsive in

his communications with her. The Tribunal also accepts that the Applicant was, at

times, unreasonable, as evidenced, for example, by his refusal to conduct a dry-

run of a scheduled presentation. However, the defensive response of the Applicant

in this and other instances was symptomatic of the complete breakdown in trust

and confidence in the employment relationship. The Tribunal also notes that

providing feedback to a staff member on to how to improve a document that they

have worked on is a normal and expected component of the role of a supervisor

and should not, by itself, be construed as notification of poor performance.

105. The Tribunal has considered the documentary evidence and testimony and

finds that at no point prior to the meeting of 13 February did Ms. Londén

communicate clearly and unequivocally to the Applicant that his overall

performance was below expectations and needed to be improved. The record

shows that the Applicant was eager to receive a performance appraisal,

particularly when, after the meeting on 13 February 2012, he became concerned

that Ms. Londén had a negative view of his performance and indicated to him



Page 33 of 42

that: (a) she would not recommend the renewal of his contract when it expired;

and (b) he would need to be transferred to a new assignment.

106. The Applicant suspected that Ms. Londén had reached these two

conclusions based, at least in part, on negative views about his performance and

the relationships within the ERP team. He wanted an assessment of his

performance in writing. However, he was not prepared to engage in a process that

he did not regard as open-ended and allowing for a genuine dialogue. The e-mails

between Ms. Londén, Ms. Ellis and Ms. Moussa of early March 2012 suggest that

the Applicant was correct in his perception that a decision had already been made

to recommend the termination of his contract. The Tribunal finds that the meeting

he was invited to by Ms. Moussa on 6 March 2013 was not a genuine opportunity

to discuss his performance. The main reason for the meeting seems to have been

to create the appearance that the relevant procedures had been complied with.

When the Applicant expressed his reservations about attending the proposed

meeting, the relevant mangers regarded their obligation to consult with the

Applicant in person as having been fulfilled. The Applicant was afforded the

opportunity to provide written comments on the PER. He did not avail himself of

that opportunity. However, there is no evidence to suggest that he knew that his

case was to be forwarded to the ACHR the following week.

107. In Simmons, 2012-UNAT-222, the United Nations Appeals Tribunal

observed:

Importance of annual e-PAS reports cannot be under-estimated.

These reports are important for the staff member because they

inform the staff member of how well or poorly she has performed

and how her performance has been judged by her reporting

officers. This gives the staff member an opportunity to improve her

performance.

108. In accordance with PD No. I/112.6/15 in all circumstances in which a staff

member is terminated or separated from service, a PER must be produced unless a

report on the relevant staff member has been made in the last six months. The

PER that the Agency is required to produce in these circumstances is to be

regarded as a developmental tool, in which the staff member concerned is

“directly involved in the reporting process rather than merely being the object of



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the report” as envisaged by the performance management policy in effect at the

time. The Performance Evaluation Report provides staff members with an

opportunity to describe their accomplishments during the review period in the

Self-Appraisal section, however the bulk of the assessment comes from the First

Reporting Officer who provides ratings on each of the eleven performance

indicators, and associated comments, and an overall performance rating. If a

supervisor has already decided to recommend termination of a staff member, and

the staff member knows it, as in this case, then it is difficult to see how the

performance evaluation process can result in a “constructive dialogue”.

Supervisors and managers should keep an open mind until after the PER process

is completed.

109. The Tribunal finds that the performance appraisal procedures adopted in

this case were not in accordance with proper procedure in that there was no

discussion with the Applicant about his performance before finalizing the PER.

The Applicant was also not provided with the PER ahead of the proposed

meeting, which was necessary if he was to provide any sort of meaningful

response. He did not refuse to meet for discussion outright, but merely set out a

number of concerns that he had about the process, which were understandable

given the earlier indication that he had received from Ms. Londén that if a PER

was created it would not be good. He received no response and Ms. Londén left

the next day. Ms. Moussa was not prepared to wait until the return of Ms. Londén

and Ms. Ellis to discuss the PER as suggested by the Applicant in his e-mail.

110. The Applicant did not provide written comments on the PER when

provided with the opportunity, which didn’t help his cause before the ACHR, but

by that stage he was entirely disillusioned with the process, due to the way in

which it had been managed, starting with the meeting on 13 February at which he

was advised, prematurely, given the absence of a PER, that Ms. Londén would not

be recommending the renewal of his contract.

Was the decision to terminate the Applicant’s employment properly made?

Was there a conflict of interest?



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The Applicant submitted that the presence of Ms. Moussa at the ACHR meeting

created a conflict of interest because she was one of the “decision makers” who

terminated his contract. She was able to advocate for her position while the

Applicant could not.

111. The Respondent submits that the ACHR is not a decision making body but

rather an advisory body. The decision was made by Commissioner-General based

on the recommendation of the ACHR.

112. Organization Directive No. 20, effective 1 July 2009, on the ACHR,

provides:

3. The conduct of the business of the ACHR shall be guided by

the following principles:

• Provides for impartial and transparent review and

advice to the Commissioner-General on certain human

resources matters, such as managed reassignments, and

proposed non-renewals of international staff and senior

area staff

* * *

5. The ACHR will make recommendations to the

Commissioner-General on:

* * *

(f) Any other human-resources related matters as deemed

appropriate by the Commissioner-General or DHR.

6. The Deputy Commissioner-General will serve ex-officio as

Chairperson of the ACHR, and will designate an Alternate

Chairperson from among the Members when the need arises.

* * *

8. The Director of Human Resources, or his/her designated

Alternate, will attend ACHR meetings to present proposals

and items, and to provide expert or technical input. The

Chairperson or Alternate Chairperson may also invite other

staff members to attend as required to provide expert and

technical information and input.

* * *

12. Members and Alternates, in all cases, must recuse themselves

from consideration of any submission made by them or their

offices.



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113. The Tribunal notes that while the ACHR is not a decision-making body,

the Commissioner-General is likely to infer that a recommendation from the

ACHR is produced as a result of a thorough and independent review of a case and

that the members of the ACHR have considered the case from all perspectives.

114. In her capacity as DHR, Ms. Moussa delivered the presentation to the

ACHR outlining the background facts and circumstances. Ms. Moussa had been

involved in the case and had coordinated with Ms. Londén and Ms. Ellis via e-

mail in the weeks preceding the ACHR meeting. The clear aim expressed in that

correspondence, which took place before the Applicant had been offered the

opportunity to comment on the PER that was being compiled, was to urgently

refer the Applicant’s case to the ACHR with a recommendation to terminate his

employment. The Tribunal finds that Ms. Moussa’s presentation was one-sided in

that the Applicant’s concerns and challenges, including his reasons for not

engaging in the discussions of the PER, were not fully reported. This explanation

would have provided the ACHR with a more balanced picture to enable them to

assess the merits of the case being put forward against the Applicant and to assess

and advise on the recommendation.

115. It was also inappropriate for Ms. Ellis to chair the discussion given the fact

that she was the Applicant’s Second Reporting Officer who approved the contents

of the PER which was being considered by the ACHR in assessing the

Applicant’s performance. She should have declared a conflict of interest. Given

her seniority within the Agency, it is open to question whether other members of

the ACHR would have felt comfortable challenging the performance assessment

which Ms. Ellis had endorsed. Paragraph 6 of OD No. 20 clearly contemplates

situations in which the DCG will need to designate an Alternate Chairperson and

Ms. Ellis should have done so in this case. Failure to do so is an error of

procedure as well as one of substance.

116. The Tribunal finds that both the one-sided nature of Ms. Moussa’s

presentation, particularly in the absence of any written comments from him

explaining his position, and the inappropriate participation of Ms. Ellis as Chair of

the discussion of this agenda item, call into question the propriety of the process



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by which the recommendation to the Commissioner-General was produced and

thereby contaminate the decision.

Did Ms. Londén, Ms. Moussa, and/or Mr. Cronin threaten the Applicant or did

their conduct amount to harassment, extortion, or abuse of power?

117. The Applicant’s submissions in regard to these allegations were based

primarily on the recordings submitted as evidence. As noted at paragraph 96, the

Judge listened to the recordings and determined that, given the issues to be

decided in this case, including whether these allegations are well-founded, the

recordings were not relevant and sufficiently probative to justify their admission

into evidence and consequently they were not considered necessary for a fair and

just disposal of the proceedings. It is regrettable that there appeared to be an

element of entrapment and not simply a desire on the part of the Applicant to

protect his own interest.

118. The Applicant has failed to show that Ms. Londén, Ms. Moussa, and/or

Mr. Cronin behaved improperly by threatening him or offering to “buy his

silence”. These allegations are unsubstantiated and are therefore dismissed.

Was the decision to terminate the Applicant’s employment an act of retaliation?

119. The first question to determine is whether the Applicant has identified a

“protected activity” within the meaning given to that phrase in General Staff

Circular 5/2007 of 31 December 2007. Paragraph 5 of GSC 5/2007 provides:

“Protected activity” means the action of an individual who –

(i) reports, in good faith or on reasonable grounds, allegations

or complaints of misconduct, misappropriation of Agency

assets, fraud, corruption or abuse of authority; or

(ii) cooperates in good faith with duly authorized audits or

investigations.

120. At the CMD the Judge drew a distinction between acts that occurred

before the meeting of 13 February 2012, in which Ms. Londén informed the

Applicant that she did not intend to renew his contract, and acts that occurred after

this meeting. By Order No. 055 dated 24 June 2013, the Tribunal ordered the



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Applicant to set out the particulars of the act or acts that he submits were

protected for the purposes of supporting his retaliation claim.

121. In his response to Order No. 055 the Applicant referred to two acts that he

submitted were protected. The first act occurred on 11 and 12 December when the

Applicant questioned an attempt at “rigging” a sole source contract for a preferred

consultant. On 11 December 2011, Ms. Gulnora Burkhanova, a Human Resources

and Administrative Officer of the ERP Project, e-mailed members of the ERP

team to seek input into the preparation of a Terms of Reference for a named

consultant. The e-mail stated that “[t]here should be a link to the previous

assignment though to justify the direct hire.” According to the Applicant he

discussed the e-mail with Ms. Burkhanova and

explained that he considered it inappropriate to write Terms of

Reference to benefit a particular consultant, that the contract had to

be done in a competitive way, and that the previous work of the

consultant was not related to the ERP Project or to the needs of the

Project given that more than six months had passed.

122. By e-mail to Ms. Burkhanova dated 12 December 2011, the Applicant

sought copies of any communications exchanged with Ms. Londén in relation to

the contract and when Ms. Burkhanova stated that there were no written

communications he asked whether she had received verbal instructions from Ms.

Londén to proceed with an offer to the consultant. The Applicant stated that he

received no reply.

123. The Tribunal does not consider that the discussion and e-mails referred to

above falls within the definition of a “protected activity” because the Applicant

did not actually “report” the concerns he had; that is, he did not communicate

those concerns to a department or staff member with the jurisdiction or authority

to review the alleged wrongdoing. Ms. Londén testified at the hearing that she had

no knowledge of the Applicant’s concerns at the time and when asked if Ms.

Burkanova had informed her of the Applicant’s concerns she replied. “I do not

recall”. In the absence of any countervailing evidence the Tribunal is unable to

find that Ms. Londén knew and that such knowledge provided the motivation to

get rid of the Applicant. Moreover, the rot had set in long before the Applicant’s



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query regarding the contract of the outside consultant. In any event given the

narrow definition of what constitutes a protected activity the Applicant cannot

rely upon this as a protected activity.

124. The second act is the submission of the memorandum dated 17 February

2012 to the United Nations Ethics Office and the Director of the Agency’s

Department of Internal Oversight Services. The Tribunal finds that this was a

protected activity within the meaning given to the phrase in GSC 5/2007. The

Applicant’s application to the Tribunal and the documents in the case file suggest

that the Applicant was acting in good faith in submitting these allegations.

Whether or not the allegations are well founded is a different matter.

125. In order to prove that retaliation occurred, the Applicant must also show

the existence of a causal link between the protected activity and an adverse or

detrimental action taken against him by the Agency. In his testimony the

Applicant submitted that there was an increased urgency to move him out of the

ERP Project after he submitted his first complaint to the Ethics Office on 17

February 2012. A few days after the complaint was lodged he met Ms. Londén

and was offered a new assignment which he considered to be inappropriate. He

submitted that a change had taken place in the attitude of Ms. Londén between the

meeting on 13 February, when she had been prepared to let the Applicant

complete his contract, and the meeting on 20 February where the reassignment

offer was presented, which was to take effect the following day. When the

Applicant declined the reassignment, his contract was terminated.

126. The Applicant failed to ask Ms. Londén appropriate questions in cross-

examination to explore or to test this allegation. The Tribunal’s factual findings

are consistent with the conclusion that there was no causal link between the

protected activity performed by the Applicant and the decision on early

termination of his fixed-term appointment. The evidence is more consistent with

Ms. Londén becoming exasperated with the Applicant and considering that there

were no other options given that he had turned down the proposed alternative

assignment and that there was “discord” within the ERP team, which meant that

she considered that it would be detrimental to the Project if he remained in his



Page 40 of 42

current post. The Tribunal finds that Ms. Londén’s assessment was not connected

to the protected act that the Applicant engaged in when filing a complaint on 17

February 2012.

127. In general it is relatively easier for a staff member to prove that she/he

engaged in a protected activity than it is to show that there is a causal nexus

between the fact of having engaged in a protected activity and the detriment to

which the staff member has been subjected to. In this case, the Applicant succeeds

at the first hurdle but falls at the second because of his failure to adduce sufficient

evidence from which the Tribunal could conclude that there was a causal nexus

between the acts referred to and the contested decisions.

Conclusion

128. This case is unusual in that the relationship between the Applicant and Ms.

Londén went sour at a very early stage in the Applicant’s contract despite the fact

that Ms. Londén had been instrumental in hiring him to work on the ERP Project.

A huge volume of e-mails has been submitted in evidence which documents the

breakdown in the relationship in painstaking detail. The Applicant is not

blameless in this affair. As documented by the evidence, Ms. Londén repeatedly

offered to discuss with the Applicant, in person, the various issues he raised. The

Applicant showed a stubborn unwillingness to engage, which contributed to the

unresolved issues in the workplace. However, the Agency is also at fault. Ms.

Londén clearly signposted the breakdown in the relationship and her frustrations

with the situation in her e-mail to Ms. Moussa and Ms. Ellis of 13 October 2011.

The situation was clearly getting out of hand and needed somebody to intervene in

an evenhanded manner for the benefit of the Project. Despite the detailed

submissions from both parties relating to whether various assignments, project

documents and tasks were satisfactorily completed by the Applicant, it is not the

task of the Tribunal to make an overall assessment of the Applicant’s

performance. The primary concern of this judgment has been an examination of

the question whether or not the Agency managed the Applicant’s performance in a

fair and procedurally correct manner. The Tribunal finds that it did not. The

Applicant never received clear notification that his performance did not meet



Page 41 of 42

expectations across the board. The e-mails between Ms. Londén, Ms. Moussa and

Ms. Ellis in early March suggest that there was little room for movement on the

draft PER that was prepared. However, more important were the procedural

breaches at the ACHR stage when the role and function of this important advisory

committee was compromised as described in paragraphs 113-115, thereby calling

seriously into question the propriety of the proceedings. The Tribunal finds that

the termination of the Applicant’s employment was procedurally flawed and

cannot stand.

Remedies

129. Paragraph 5 of Article 10 of the Statute of the Tribunal provides:

As part of its judgment, the Dispute Tribunal may order one or

both of the following:

(a) Rescission of the contested administrative decision or

specific performance, provided that, where the contested decision

concerns appointment, promotion or termination, the Dispute

Tribunal shall also set an amount of compensation that the

respondent may elect to pay as an alternative to the rescission of

the contested administrative decision or specific performance

ordered, subject to subparagraph (b) of the present paragraph;

(b) Compensation, which shall normally not exceed the

equivalent of two years’ net base salary of the applicant. The

Dispute Tribunal may, however, in exceptional cases, order the

payment of a higher compensation and shall provide the reasons

for that decision.

130. Given that the Applicant was employed on a fixed-term contract with no

right or expectation of renewal, the Tribunal finds that it would not be appropriate

to order re-instatement in this case.

131. The decision to terminate the Applicant’s fixed-term contract before the

date of its expiry is rescinded.

132. The Respondent is ordered to pay to the Applicant the salary and other

emoluments and benefits to which he would have been entitled had his contract

continued until its expiration date.



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133. The above sums are to be paid within 60 days of the date this Judgment

becomes executable during which period the US Prime Rate applicable as at that

date shall apply. If the sum is not paid within the 60-day period, an additional five

per cent shall be added to the US Prime Rate until the date of payment.

134. The Applicant has requested separate awards of moral damages in

recognition of the stress, anxiety and moral damage inflicted on both himself and

his wife. The claim in respect of his wife is dismissed. A hearing will be convened

in February 2014 to determine whether there is sufficient evidence to support an

award of moral damages and, if so, to determine the appropriate quantum.

135. At the hearing the parties may also address the Applicant’s claim for travel

costs and expenses relating to his travel to Colombia and New York following the

termination of his contract.

136. All other relief sought by the Applicant is refused.

Judgment

137. The application succeeds.

(Signed)

Judge Goolam Meeran

Dated this 30th

day of September 2013

Entered in the Register on this 1st day of October 2013

(Signed)

Laurie McNabb, Registrar, UNRWA DT, Amman

Documents

Case No.: UNRWA/DT/HQA/2012/042 NRWA … is an application by Camilo Riano ... the evidence is inconclusive. Case No.: ... Case No.: UNRWA/DT/HQA/2012/042